Global Policy Forum

By Paul Foot

What is the legal and moral justification for the so-called international war crimes tribunals? I've been trying to get an answer to this question since I, as, I suspect, many other people, was under the illusion that the tribunals were set up to punish war criminals everywhere. Not so, however. These tribunals have been set up by resolutions of the UN security council to punish crimes in only two areas in the world so far - the former Yugoslavia (for which a tribunal was set up in 1993) and Rwanda (1994).

A UN press release issued last November quoted the president of both tribunals, Carla Del Ponte, complaining that the Yugoslav tribunal's "historical credibility" was being "undermined" by "forced inaction on what had happened in Kosovo since June 1999"; and that the tribunal was still "faced with difficulties, related primarily to the number of accused who remain at large".

Somehow she managed to avoid any mention of what seems to me much more serious difficulties which undermine the tribunals' historic credibility. These arise from the tribunals' limited scope, which leave them open to the charge that they are concerned only with war crimes committed in areas convenient to US foreign policy; and that the whole paraphernalia of courts and prosecutors set up by the UN security council represents yet another arm of the US state department, which effectively controls the security council.

If the tribunals, judges, prosecutors etc want to be taken seriously as purveyors of an international rule of law, then surely their writ should run into all areas where the laws they claim to defend are flouted?

The most shocking example of the tribunals' impotence is the state of Israel. The Israeli government continues to behave in the most flagrant contempt not only of the UN, seizing tracts of territory and exploiting and enslaving its people, but also of the most basic laws and conventions covered by the statute of the international war crimes tribunals and written into international law by security council resolutions.

These give the tribunals power to prosecute persons "committing or ordering to be committed grave breaches of the Geneva conventions" including: a) wilful killing; b) torture or inhuman treatment; c) wilfully causing great suffering or serious injury to body or health; and d) extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly.

Every one of these provisions is broken daily, and universally seen to be broken daily, by Israeli forces under the orders of its government and its prime minister, Ariel Sharon. That government brazenly admits to a policy of assassinations (so tactfully downgraded by the BBC to "targeted killings").

If there is any doubt about this, consider article 3 of the tribunals' statute, which refers to the "wanton destruction of cities towns and villages or devastation not justified by military necessity", or article 5, that empowers the tribunal to prosecute persons responsible for crimes against humanity, including murder, if it is "committed in armed conflict and directed against any civilian population".

There is no need for potential prosecutors to delve into Sharon's gruesome history - such as his role in the slaughter of over 60 Palestinians in the village of Qibya in 1953, documented by Israeli historian Benny Morris; or his responsibility as Israeli defence minister for the butchery of at least 2,000 people in the Lebanese refugee camps of Sabra and Shatila in 1982 (the climax of Sharon's invasion of Lebanon, denounced as illegal by the UN and even by Margaret Thatcher).

No need for any retrospective legislation to deal with this man. No need, even, to question the double standards of our own Tony Blair, who breaks off from his earnest soliloquy praising the arrest by the tribunal of Slobodan Milosevic (already a prisoner in his own country), to beam with welcome while shaking the bloodstained hand of Sharon.

The current daily behaviour of Israeli troops is quite enough to justify extending the scope of the war crimes tribunals to the government of Israel and its tyrannical behaviour in the territories it has stolen from the Palestinian people and planted with its own fanatical colonists. Indeed, the daily breach by Israeli troops of the tribunals' own statute poses a challenge to the tribunals' judges, prosecutors and administrators.

As long as they remain powerless to deal with the crimes of Israel, as long as Sharon is kept out of their dock, the tribunals will be seen to be excluded from sitting in judgment over the crimes of the US or any of its client states, and the tribunals' trials, deliberations and verdicts will be absolutely worthless.